WAGLAC News & Updates
August 19, 2019
WAGLAC NEWS
UPCOMING MEETINGS
WAGLAC Fall Meeting
October 21 - 22, 2019
Marriott Scottsdale at McDowell Mountains
Scottsdale, Arizona
In addition to the roundtable discussion of natural resource, environmental, and Indian law cases, there will be a CLE on Indian Law Issues. 
WAGLAC Winter Meeting
February 17 - 18, 2020
Westin San Diego
San Diego, California
In addition to the roundtable discussion of natural resource, environmental, and Indian law cases, there will be a CLE on Water Law Issues. Please plan to arrive February 16th, the contracted room rate is $209/night.
ENVIRONMENT
Public Webinar for the Proposed “Updating Regulations on Water Quality Certification” Rule

Earlier this month, the EPA signed a proposed rule to implement Clean Water Act section 401. The EPA will host a public webinar to help explain the key elements of the proposed “Updating Regulations on Water Quality Certifications” rule on August 20, 2019 from 1:00pm - 2:00pm (Eastern Daylight Time). The webinar will be recorded and posted on the EPA's website for those who are unable to attend. 

Additionally, EPA will host public hearing sessions on the proposed Rule on Sept. 5-6 in Salt Lake City, UT.  EPA will open a 60-day public comment period on the proposed Rule, which will commence upon publication of a Notice of Proposed Rulemaking in the Federal Register—expected to occur on Thursday August 22nd.
EPA Proposes to Revise 404(c) Rules
 
On June 26, 2018, the EPA Administrator issued a memorandum titled, 'Updating the EPA's Regulations Implementing Clean Water Action Section 404(c),' which directed the EPA's Office of Water to develop proposed revisions to the Agency's Section 404(c) regulations.Section 404( c) authorizes the EPA to restrict, prohibit, deny, or withdraw the use of an area as a disposal site for dredged or fiII material. The EPA regulations implementing Section 404( c) authorize the EPA to initiate and finalize the Section 404(c) review process "whenever'· it determines, after notice and opportunity for pubIic comment that the discharge will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas. wildlife, or recreational areas.
 
On August 13th, EPA asked intergovernmental associations for comments on proposed revisions to the 404(c) regulations. EPA has scheduled an informational webinar for intergovernmental association for September 4th, and requested pre-proposal comments on the proposed 404(c) rulemaking by September 13, 2019.
EPA Exceeds Goals Set by President Trump's Rule-busting Order
E&E News
August 9, 2019

"EPA has far surpassed deregulatory goals set by President Trump's 2-for-1 executive order, but the agency has not been transparent enough about how it is deciding to cut regulations, according to a new EPA inspector general report.

During the first two years of the Trump administration, EPA surged past the targets set in executive order 13771, which stipulated agencies must cut two existing regulations for each new one issued. It also established a progressively tightened regulatory budget for federal agencies."
States Sue Trump Administration Over Rollback of Obama-Era Climate Rule
The New York Times
August 13, 2019

"A coalition of 29 states and cities sued to block the Trump administration from easing restrictions on coal-burning power plants, setting up a case that could determine how much leverage the federal government has to fight climate change in the future.

The lawsuit is the latest salvo in a long-running battle over the future of coal and how to regulate the nation’s heavily polluting power plants, which are major producers of greenhouse gases that warm the planet. It also is the most significant test to date of the Trump administration’s efforts to eliminate or weaken former President Obama’s regulations to reduce the United States’ contribution to global warming.
Maui: Narrow Clean Water Act Is By Design, Not Loophole
E&E News
August 13, 2019

"A narrow reading of the Clean Water Act does not create a loophole in the landmark law but rather interprets it as Congress intended, lawyers for Maui County told the Supreme Court this week.

The Hawaiian municipality is involved in a closely watched environmental case slated for the high court's consideration in November. The question: Does the Clean Water Act's permitting system apply to pollution that moves through groundwater before reaching a federally regulated waterway?

County lawyers say the answer is no."
FISH AND WILDLIFE
Department of the Interior, OIEA Newsletter
August 19, 2019

Secretary's Update: Secretary Bernhardt Signing the Final Regulations of the Endangered Species Act

"On Monday, August 12, Secretary David Bernhardt unveiled improvements to the implementing regulations of the Endangered Species Act (ESA) designed to increase transparency and effectiveness and bring the administration of ESA into the 21st century. The changes finalized by Interior’s U.S. Fish and Wildlife Service and Commerce’s National Marine Fisheries Service apply to ESA sections 4 and 7. Section 4, among other things, deals with adding species to or removing species from ESA’s protections and designating critical habitat; section 7 covers consultations with other federal agencies."

You can listen to Secretary Bernhardt’s remarks from August 12, 2019 by clicking on the links provided here:  Audio Clip 1 Audio Clip 2 . ""
Attorneys General Becerra, Healey Issue Statements on Trump Administration’s Final Rule Rolling Back Key Provisions of Endangered Species Act
August 12, 2019

"California Attorney General Xavier Becerra and Massachusetts Attorney General Maura Healey issued the following statements in response to the announcement by the Trump Administration of its final rule rolling back key provisions of the Endangered Species Act.

In September 2018, Attorney General Becerra, leading a coalition of ten state attorneys general, submitted a comment letter describing critical flaws with the proposed rollbacks by the U.S. Fish and Wildlife Service and the National Marine Fisheries Service."
INDIAN LAW SUMMARY UPDATES
Clay Smith, the American Indian Law Deskbook chief editor, summarizes Indian law decisions assigned headnotes by Westlaw to facilitate the Deskbook’s annual revision. 

Please note, The 2019 Edition now appears on Westlaw under the Secondary Sources/Texts & Treatises category. We anticipate that the hardbound version will be out later this month
Recent Indian Law Case Summaries
In re A.W.,  ___ Cal. Rptr. 3d ___, 2019 WL 3773849 (3d Dist. Aug. 12, 2019): Indian Child Welfare Act notice requirement in 25 U.S.C. § 1912 was not satisfied when agency resent an unclaimed notice of a pre-jurisdictional status hearing after the hearing, and the tribe was not otherwise notified of the child custody proceeding.
Big Sandy Rancheria Enterprises v. Becerra , ___ F. Supp. 3d ___, 2019 WL 3803627 (E.D. Cal. Aug. 13, 2019): Challenge by a tribal enterprise incorporated under section 17 of the Indian Reorganization Act to the California Cigarette Tax Law barred by the Tax Injunction Act, and its challenges to other California tobacco regulation laws, including the State tobacco complementary statute, failed to state a claim for federal preemption.
Douchette v. Bernhardt , ___ F. Supp. 3d ___, 2019 WL 3804118 (W.D. Wash. Aug. 13, 2019): Unsuccessful candidates for four open seats on tribal council failed to establish that Department of the Interior officials acted arbitrarily, capriciously or in violation of law by inconsistently applying an alleged policy of construing tribal law when determining the propriety of elections.
Miccosukee Tribe of Indians of Florida v. Lewis Tein P.L. , ___ So.3d ___, 2019 WL 3807985 (Fla. 3d Dist. Ct. App. Aug. 14, 2019): Circuit court abused its discretion in denying a motion for attorney’s fees by a defendant tribe pursuant to offers of judgment because it found the offers were not made in good faith.
Cook Inlet Tribal Council v. Mandregan , ___ F. Supp. 3d ___, 2019 WL 5817350 (D.D.C. Aug. 14, 2019): The remand remedy in  Cook Inlet Tribal Council v. Mandregan , 348 F. Supp. 3d 1 (D.D.C. 2018), was reconsidered and vacated, with the parties ordered to negotiate the appropriate amount for the facility support costs and to submit to the Court a joint proposed order and final judgment.
Little Traverse Bay Band of Odawa Indians v. Whitmer , ___ F. Supp. 3d ___, 2019 WL 3854299 (W.D. Mich. Aug. 15, 2019): 1855 Treaty of Detroit did not create a reservation for the signatory tribes.
All summaries are posted in CWAG's google docs acc ount, accessible through the link below. Should you have any issues with the links, contact Andrea Friedman with any questions.
INDIAN LAW DESKBOOK
Updated  American Indian Law Deskbook  Is Now Available

The  American Indian Law Deskbook is a concise, direct, and easy-to-understand handbook on Indian law. The chapter authors of this book are experienced state lawyers who have been involved in Indian law for many years.

American Indian Law Deskbook addresses the areas of Indian law most relevant to the practitioner.
Topics include:
  • Definitions of Indians and Indian tribes
  • Indian lands
  • Criminal, civil regulatory, and civil adjudicatory jurisdiction
  • Civil rights
  • Indian water rights
  • Fish and wildlife
  • Environmental regulation
  • Taxation
  • Gaming
  • Indian Child Welfare Act and tribal-state cooperative agreements
WAGLAC
CWAG oversees and coordinates the Western Attorneys General Litigation Action Committee (WAGLAC), which consists of assistant attorneys general involved in litigation related to the environment, natural resources, public lands and Indian law. WAGLAC was formed over 30 years ago and meets three times per year to discuss the latest developments in these areas of the law. AGO staff gain important contacts throughout the country in these important areas of the law.
CWAG | CLIVE.STRONG@CWAGWEB.ORG | (208) 850-7792 | WWW.CWAGWEB.ORG
Contributions For WAGLAC Newsletter

We rely on our readers to send us links for the WAGLAC Newsletter. If you have or know of a recent (published in the last two weeks) case, statute or article relating to natural resources, environment, Indian law or federalism that you would like us to consider for inclusion in the Newsletter, please send it to clive.strong@cwagweb.org. For a complete, searchable database of all previously published WAGLAC newsletters, please follow the link below.